As an artist building a career, exposure is obviously one of the key ingredients to growing your fan base. In your excitement to get yourself seen by as many people as possible, it is understandable that you may relish having fans video your performances and encourage them to post/share them on the Web. Even some popular established acts are known to allow it.
But what if you should have a change of heart, perhaps because one or more of those live music videos showed you in a poor light or you decide to monetize your own “official” video of the same or similar concert?
Importantly, in Canada and a number of other countries, the soundtrack and visual images together in a music video are deemed one composite entity. The music itself is considered a separate entity only when used in another context, such as on an album.
This means that if some party approaches you and you agree to let them film your performance, you probably would not be considered under law to have any ownership rights to the video or control over its broadcast and distribution unless you have a written agreement to the contrary with them or you paid them to film it–even though you were the feature performer and it was your music that was performed! At best, you would be considered a joint owner of the video with the person who shot it; but even then, they, as a joint creator of the recording, would have the power to grant a non-exclusive license to others for use of any portion of it because a joint owner can license or use any segment of a joint work without infringing its copyright.
Notice that we’re talking here about anybody who films your performance, whatever their interest may be in doing so. Sure, it could be an individual fan who just wants a personal keepsake of the event. But it could also be one who is eager to circulate it on the Web, or perhaps a professional freelance videographer who intends to shop it for money, or someone from an outfit that broadcasts or sells videos of live concerts. The question for you then becomes what recourse you might have when, against your wishes, people decide to freely disseminate a video they’ve made of your concert or are exploiting it in some way for financial gain.
Don’t want that recording of your performance up on video streaming sites or social media pages? Not keen on it been available for download on peer-to-peer sharing services? Good luck getting it pulled. You might be able to get a court of law to hold the owner of the video responsible for paying you fair compensation for their use of your copyrighted song material and performance in it, but that isn’t the same thing as a court-issued cease and desist order. Yet, if what’s happening with the recording is not to your liking, having it yanked from circulation might be much more important to you than the money. Getting it’s owner onside with you could be extremely difficult, not to mention policing all the possible sites it might be on and soliciting their co-operation. If you go the route of petitioning the courts for help, it would boil down to how the judge views the intent of the party (whether there was malicious intent to harm your reputation, for example) and their fair rights to use their recording.
You might wonder if the circumstance would be different if the person videoing you didn’t bother to ask your permission. Possibly, but absent any effort on your part to inform those in attendance about your policy on recording the concert, you might find yourself in the same position as I’ve described above. It really depends on the particulars of the situation and whatever legal precedent exists that a judge would find relevant. Indeed, in most jurisdictions, if the performance takes place in a public setting (busking on a sidewalk, for example) people don’t need your permission to film you, it’s their right.
The long and the short of all this is that once a video of your performance is out there you could end up having no legal (let alone practical) way to get what’s happening with it stopped.
All this said, when it comes to others filming at your concerts and what happens afterwards, there are steps you can take that will go a long way towards preventing things from getting out of your control. I’ll be getting into that very important subject next in an upcoming blog. Stay tuned!